IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30092
Summary Calendar
_____________________
RICKY ENGLISH,
Plaintiff-Appellant,
v.
JACKSON NATIONAL LIFE INSURANCE COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(95-CV-2324-R)
_________________________________________________________________
August 1, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Ricky English (“Ricky”) brought claims against Jackson
National Life Insurance Company (“JNL”) to recover death benefits
under a life insurance policy. Ricky appeals the district
court’s grant of summary judgment in favor of JNL. We affirm.
I. FACTS AND PROCEDURAL HISTORY
In August of 1993, JNL issued a life insurance policy to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Ricky as owner and beneficiary on the life of his uncle, William
English (“William”). Prior to obtaining this policy, Ricky
contacted Henry Albert (“Albert”) and told him that he was
interested in purchasing a life insurance policy on the life of
William. At the time, Albert was licensed to sell insurance for
several companies, and life insurance and annuities were the
primary focus of his business. Subsequently, Ricky, William, and
Albert met to discuss life insurance at Ricky’s home. Albert
reviewed a JNL insurance application with William and Ricky that
included questions concerning William’s medical history. After
responding out loud to Albert’s questions read from the
application, William signed the application in three places
although the section containing questions about his medical
history remained blank. At William’s request, Ricky then made a
copy of the application to keep.
Several days later, Albert requested that Ricky come to his
office. At this meeting, Ricky gave Albert a check for the
initial premium, provided some additional information on the
application, and signed the application as owner and applicant in
two of the places previously signed by William. Ricky states
that he does not remember whether the section containing
questions about William’s medical history was still blank or
filled in at this time.
Upon accepting the application, JNL issued a policy
effective August 12, 1993, payable upon William’s death in the
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amount of $150,000. This policy was delivered to Ricky’s place
of business. In part, the policy provided that:
The consideration for issuing this Policy is the
application and the payment of the first premium. This
Policy and the application, a copy of which is attached
and made part of the policy, constitute the entire
contract between the parties. All statements made in
the application will, in the absence of fraud, be
deemed representations and not warranties; and no
statement will void this Policy or be used as a defense
to a claim unless it is contained in such written
application.
On the final application, which was attached to the policy
received by Ricky, all of the questions concerning William’s
medical history were answered in the negative.
On February 27, 1994, William died. Ricky filed a claim for
death benefits under the policy in April of 1994. Because
William died within the two-year contestable period of the
policy, JNL investigated the information provided on the
application. Upon reviewing medical records, JNL learned that,
contrary to the answers on the application, William’s medical
history included smoking within a year of the application and the
following hospital admissions: 1) February of 1989 for an acute
myocardial infarction secondary to congestive heart failure,
coronary atherosclerosis, and diabetes mellitus; 2) March of 1989
for coronary bypass surgery, when the principal diagnosis was
intermediate coronary syndrome secondary to congestive heart
failure and diabetes mellitus; and 3) April of 1989, April of
1991, and July of 1992 for a second below-the-knee amputation as
3
a result of the complications of diabetes mellitus and peripheral
vascular disease.
In a letter dated December 9, 1994, JNL notified Ricky that
his claim for death benefits was denied because of
misrepresentations contained in the application which led JNL to
declare the policy null and void. JNL further asserted in this
letter that had they known of William’s medical history, the
policy would not have been issued.
JNL noted that several of the questions on the application
concerning William’s medical history that were answered “no” were
important in denying Ricky’s claim. Specifically, they listed
the following questions:
2. Have you ever been treated for, or ever had
any indication of:
d. Chest pain, discomfort or tightness;
palpitations, high blood pressure, rheumatic
fever, heart murmur, heart attack or other
disorder of the heart or blood vessels?
g. Diabetes: thyroid or other glandular or
endocrine disorders?
i. Deformity, lameness or amputation?
j. Disorder of skin, lymph glands, cyst, tumor,
or cancer?
k. Allergies; anemia or other disorder of the
blood?
3. Have you, in the past five years:
a. Consulted or been treated by a physician or
other medical practitioner?
b. Been a patient in a hospital, clinic, or
medical facility?
c. Had an electrocardiogram, x-ray or other
diagnostic test?
4. Are you presently taking any prescribed
medication?
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6. Have you ever requested or received a
pension, benefits, or payment because of an
injury, sickness or disability?
8a. Have you smoked cigarettes in the past 12
months?
On February 27, 1995, Ricky filed suit in Louisiana state
court seeking recovery of death benefits under the policy. The
matter was removed to federal court based on diversity
jurisdiction. The parties filed cross motions for summary
judgment. On October 17, 1996, the trial court granted summary
judgment in favor of JNL. Ricky then filed a motion for a new
trial and/or to alter or amend judgment and/or for
reconsideration. This motion was denied on December 12, 1996.
The district court concluded that there was no genuine issue of
material fact regarding JNL’s affirmative defense based on
Louisiana Revised Statute § 22:619 that would allow it to deny
JNL’s motion for summary judgment regardless of whether the
ultimate fact finder was a judge or jury. Ricky timely appealed.
II. STANDARD OF REVIEW
In reviewing the district court’s grant of summary judgment,
we review the issues de novo, applying the same criteria used by
the district court in initially evaluating the motion. Norman v.
Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). Summary
judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
5
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c). The evidence and
inferences to be drawn therefrom are reviewed in the light most
favorable to the nonmoving party. FDIC v. Dawson, 4 F.3d 1303,
1306 (5th Cir. 1993), cert. denied, 512 U.S. 1205 (1994).
Summary judgment is not appropriate if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. DISCUSSION
JNL asserts that Ricky’s claim for benefits was denied
because Ricky made a material misrepresentation with the intent
to deceive in applying for the policy and, thus, JNL has no
liability to him under the policy. Louisiana Revised Statute
§ 22:619 sets forth the burden that JNL must carry in order to
prove this affirmative defense:
In any application for life or health and accident
insurance made in writing by the insured, all
statements therein made by the insured shall, in the
absence of fraud, be deemed representations and not
warranties. The falsity of any such statement shall
not bar the right to recovery under the contract unless
such false statement was made with actual intent to
deceive or unless it materially affected either the
acceptance of the risk or the hazard assumed by the
insurer.
LA. REV. STAT. ANN. § 22:619(B) (West 1995). Courts interpreting
this statute place the burden on the insurer to prove that 1) the
applicant’s statement was false, 2) the false statement was made
with the intent to deceive, and 3) the false statement materially
6
affected the acceptance of the risk by the insurer or the hazard
assumed. Wohlman v. Paul Revere Life Ins. Co., 980 F.2d 283, 285
(5th Cir. 1992).
For the purpose of his motion for partial summary judgment,
Ricky conceded that the information provided in the application
was false and that there was a material misrepresentation, but
argued that JNL could not carry its burden of proof to show
intent to deceive. He stated that there was no genuine issue of
material fact concerning intent. On appeal, Ricky now contends
that the district court erred by granting summary judgment
because a genuine issue of fact exists as to whether Ricky
possessed the requisite intent to deceive.
The burden of proving intent to deceive may be satisfied by
showing “facts and circumstances surrounding the application
process indicating the insured’s knowledge of the falsity of the
representations made in the application and his recognition of
the materiality of his misrepresentations or from circumstances
which create a reasonable assumption that the insured recognized
the materiality.” Wohlman, 980 F.2d at 286.
Ricky asserts that while a misrepresentation in fact was
made on the insurance form received by the insurer, neither he
nor William made any false statement.1 Ricky contends that
1
Ricky conceded in his motion for partial summary judgment
that there is no evidence other than that which is before the
court on the issue of intent.
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William answered all the questions Albert asked from the
application, medical and otherwise, truthfully and completely.
According to Ricky, both he and William relied upon Albert’s
expertise and special knowledge and assumed that Albert was doing
what was required with regard to correctly and completely filling
in the application. Ricky claims that Albert provided the false
information on the application; he further contends that Albert
should be considered an agent of JNL and that Albert’s acts in
erroneously filling out the application form should be considered
the acts of JNL and not binding on Ricky. Under this theory,
Albert’s knowledge of William’s true medical history would be
imputable to JNL, and JNL could not then claim reliance on any
misstatement of fact, and there would therefore be no legally
cognizable misrepresentation. We disagree.
Assuming, arguendo, that Albert should be considered an
agent of JNL, “[t]he rule that the insured is not responsible for
false answers in an application, where they have been inserted by
the agent through mistake, negligence, or fraud, is not
absolute.” Harris v. Guaranty Income Life Ins. Co., 226 La. 152,
157 (1954). Under Louisiana law, when the agent of an insurance
company “by reason of mistake, fraud, omission, or negligence
inserts erroneous or untrue answers to the questions contained in
the application, these representations bind the insurer, but are
not binding upon the insured, provided he (the insured) is
justifiably ignorant thereof, has no actual or implied knowledge
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thereof, and has been guilty of no bad faith or fraud.” Id.
(emphasis added). Ricky was not justifiably ignorant of the
misrepresentations in the application. Ricky claims that he did
not read the policy including the attached application when it
was delivered to his office although he may have “glanced through
it.” As a result, Ricky maintains that he was not aware of any
incorrect information on the application until after William’s
death despite the fact that he had the policy and the portion of
the application containing erroneous answers in his possession
for approximately six months before William died. Even viewing
Ricky’s assertions in the most favorable light, as we must, he
“could not hold the policy delivered to him without becoming
chargeable with knowledge of its contents, including the
application which was attached to the policy and expressly made a
part of it.” New York Life Ins. Co. v. Stewart, 69 F.2d 957, 958
(5th Cir. 1934). “By accepting and retaining possession of the
policy without objection, the insured adopted as his own the
answers to questions contained in the attached application,
whether those answers were or were not made . . . by the insured
prior to his signing that application.” Id.
We find it significant, moreover, that the signatures of
both Ricky and William appear below the following statement on
the insurance application:
I (we), hereinafter jointly referred to as I, represent
that all statements and answers made in all parts of
this application are full, complete and true to the
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best of my (our) knowledge and belief. It is agreed
that: (A) All such statements and answers shall be the
basis of any insurance issued. (B) No agent can make,
alter or discharge any contract, accept risks, or waive
the Company’s rights or requirements.
Ricky was aware at the time he signed the application that
William had signed the form with blank questions. Ricky contends
that despite his usual practice of not signing things if he did
not read them or know what they contained, he did not read this
language at the time he signed the application because Albert
just put the form in front of him and asked him to “sign here.”
While Ricky states that he is unsure whether the section of
the application concerning William’s health was filled out when
he signed the application, his signature appears on the form
attesting to the false information. We agree with the district
court’s conclusion that even if the key questions on the
application form were blank when both Ricky and William signed
the application, their signatures representing that the answers
in all parts of the application were true, correct, and complete
constitute a material misrepresentation made by both William and
Ricky.
As to Ricky’s recognition of the materiality of the
misrepresentations made on the application, Ricky’s deposition
testimony indicates that he was aware of their materiality. He
admitted that the amount of insurance that he was able to obtain
on William’s life was far in excess of what he expected to get
for the premium he paid in view of William’s health condition.
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He also understood that JNL was going to rely on what was written
in the application to decide whether to issue life insurance.
Finally, he indicated that he “kind of had doubts” about whether
he could get any insurance at all because William was a smoker,
an amputee, and a diabetic; and he knew that if his uncle had
written something on the application indicating that he was not
in good health, then JNL might not have issued any life
insurance. Despite this recognition, Ricky never asked any
questions as to why the section of the application concerning
medical history remained blank.
Based on the misrepresentations made by both Ricky and
William, along with Ricky’s appreciation of the materiality of
information concerning William’s medical history, we agree with
the district court’s finding that “the conclusion [is]
inescapable that [Ricky] and his uncle manifested an intent to
deceive.” Ricky’s denial of intent to deceive does not create a
material issue of fact.
Alternatively, Ricky asserts that the district court erred
in reaching the issue of intent. Ricky claims that Louisiana
Revised Statute § 22:617 controls the standing of JNL to raise
the affirmative defense of material misrepresentation with the
intent to deceive. That statute provides:
A. Any application for insurance in writing by the
applicant shall be altered solely by the applicant or
by his written consent . . .B. Any insurer issuing an
insurance contract upon such an application unlawfully
altered by its officer, employee, or agent shall not
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have available in any action arising out of such
contract, any defense which is based upon the fact of
such alteration, or as to any item in the application
which was so altered.
LA. REV. STAT. ANN. § 22:617 (West 1995). Ricky believes that
this statute indicates that the district court should not have
reviewed the evidence concerning the applicability of Louisiana
Revised Statute § 22:619. Ricky asserts that circumstantial
evidence would allow an inference that, after he signed the
application, someone else (presumably Albert) filled in the
erroneous information on William’s medical history. However,
beyond this assertion, the only relevant evidence on the record
is that Ricky does not remember whether the section containing
questions about William’s medical history was still blank or
filled in at the time he signed the application.2 As a result,
we conclude that the district court did not err in applying
Louisiana Revised Statute § 22:619 to this case.3
2
Ricky also claims that § 22:617 is applicable because JNL
admits that the misrepresentations concerning William’s health
were not present on the application when William signed the
application. Ricky believes that this admission can be derived
from a reading of two undisputed material facts that he
submitted:
4. The insurance application signed by William English was
essentially blank.
6. Neither plaintiff nor William English filled in any
additional information on the application form.
We do not agree that this amounts to such an admission.
3
Ricky also asserts that Louisiana Revised Statute
§ 22:618 should estop JNL from seeking recision of the policy
based upon material misrepresentations in the policy application.
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IV. CONCLUSION
For the foreging reasons, we AFFIRM the district court’s
grant of summary judgment in favor of JNL.4
This statute provides:
No application for life or health and accident
insurance shall be admissible in evidence in any action
relative to the policy or contract, unless a correct
copy of the application was attached to or otherwise
made a part of the policy, or contract, when issued and
delivered.
LA. REV. STAT. ANN. § 22:618(A) (West 1995). Ricky claims that
this statute is applicable because the application attached to
the policy delivered to his office was not a “correct copy” in
that it did not include a part of the application; the agent’s
underwriting report. However, the relevant portion of the
application containing erroneous information about William’s
medical history was attached to the policy. Further, Ricky
refers to the application several times in his deposition and
motion for partial summary judgment without raising this statute
to object to the application’s admissibility. We conclude that
this statute is not applicable to this case.
4
Because we affirm the district court’s grant of summary
judgment on other grounds, we do not discuss JNL’s alternative
argument that the policy is null and void because error vitiated
the parties’ consent to the insurance contract.
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